But can your lawyer impersonate Elvis?

 

 

 

 

 

 

 

 

 

 My wife and I are now two-time champions of the costume contest at Lewisburg, West Virginia’s Carnegie Hall “Fantasy” fundraiser, which was held on Saturday night.  This year’s party was themed as “Fantasy in White,” and so obviously we had to go as the “Hollywood Hotties,” aka, Elvis and Marilyn.  This is our second time winning.  Three years ago, we won “Fantasy Under the Big Top” as poodle trainers.  

 If it weren’t for those pesky Trial Court Rules that require a coat and tie, I believe I definitely could gain more prestige with jurors in this outfit.

Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding.  Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition.  I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.

Additionally, this is an extremely odd case (factually).  And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him.  It illustrates the danger of jury trials, and the power of the prosecutor.  If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender.  And then they can charge you with multiple counts, basically restricted only by their whim.  The only way to stop them is to appeal.

Also, a H/T to Tom Rist for assisting with the case.

View this document on Scribd

Laws of Search and Seizure in West Virginia

Here is a portion of the materials which I prepared for a continuing legal education seminar which I presented in Charleston, West Virginia a few weeks ago, dealing with some of the “black letter law” of searches and seizures in West Virginia.  But as I emphasized to the audience of mostly-civil litigation attorneys, this is “ivory tower” stuff that doesn’t always make a whole lot of difference in the trench warfare style of litigation that is criminal defense by jury trial.

Arrests

There first must be legal authority to arrest.  There must be a State law authorizing the arrest of a person who commits any particular act (See criminal offenses in the West Virginia Code).  Secondly, if the violation alleged is a felony, the officer must have probable cause to believe that the particular act was committed, and that the person being arrested was the person who committed the particular act, or else the act (whether felony or misdemeanor) must have been committed in the presence of the officer.  The arrest is then effectuated when the officer intends to arrest the person and communicates that intent to the person being arrested, and the person is physically restrained by the officer – either with their hands, through the aiming or discharge of a weapon, or through verbal commands that would lead a reasonable person to believe that he or she was not free to leave.

Arrest Warrants

The officer must submit a written complaint under oath or affirmation to a neutral or detached magistrate or judge, particularly describing the person to be arrested, and setting out the officer’s basis of probable cause to believe that a crime has been committed and that the person sought to be arrested committed the crime. See W. Va. Code § 62-1-1 and 62-1-2; State v. Schofield, 175 W. Va. 99 (1985).  The warrant may be executed (i.e., the person arrested) at any time or place within the state, unless the magistrate or judge restricts the execution to only such times as during which a magistrate is available to conduct an initial appearance. See Rule 4(a) of the West Virginia Rules of Criminal Procedure for Magistrate Courts.  The subject of the arrest warrant may be arrested in his or her own home, regardless of whether there is consent to enter the home.  However, there is a “knock and announce” requirement that officers must comply with, with a few exceptions. See Richards v. Winsconsin, 520 U.S. 385, 387 (1997) and Wilson v. Arkansas, 514 U.S. 927 (1995).  In order to arrest the subject in the home of a third party, the officer must have both an arrest warrant and either the third party’s consent, or exigent circumstances (see below).

Warrantless Arrests

Officers may make warrantless arrests in certain circumstances.  Such arrests are permitted for crimes committed in the presence of an officer, or for any felony for which the officer has probable cause to believe the subject committed.  Probable cause for a warrantless arrest is identical to probable cause required to secure a warrant. See Gerstein v. Pugh, 420 U.S. 103, 113 (1975).  In order to make a warrantless arrest for a misdemeanor, the facts and circumstances within the knowledge of the arresting officer must be sufficient to warrant a prudent man in believing that a misdemeanor is being committed in his presence. Syllabus, Simon v. West Virginia Dep’t of Motor Vehicles, 181 W. Va. 267 (1989).  

A warrantless arrest in the subject’s home must be justified not only by probable cause, but by exigent circumstances which make an immediate arrest imperative. Syl. Pt. 2, State v. Mullins, 177 W. Va. 531 (1987).  The test for “exigent circumstances” is whether the facts would lead a reasonable, experienced police officer to believe the evidence might be destroyed or removed before a warrant could be secured, or whether there is evidence both that the officer was actually motivated by a perceived need to render aid or assistance, or whether a reasonable person under the circumstances must have thought that an emergency existed.” See State v. Cecil, 173 W. Va. 27 (1983).  After the arrest, the subject must be taken “without unnecessary delay” before a magistrate in the county in which the arrest was made. See W. Va. Code § 62-1-5.

Jurisdiction

The arrest must occur within the proper jurisdiction of the arresting officer.  For municipal police officers, the jurisdiction is within the corporate limits of the municipality. See W. Va. Code § 8-14-3.  In some circumstances there may be a “mutual aid agreement” that could extend the jurisdictional range. See W. Va. Code § 15-10-1.  Municipal officers also may arrest suspects outside the municipality if they are within the county or counties in which the municipality is located (as if they were a deputy), if the violations were committed within the municipality – especially in pursuit situations.  Deputy sheriff’s have essentially the same arrest powers as a municipal police officer, except that their jurisdiction is always the county in which they are employed.  State troopers have statewide jurisdiction to make arrests, and can furthermore command any other state, county, or municipal law enforcement officers to assist him or her (under proclamation of the governor).  

Search and Seizure

Amendment IV of the U.S. Constitution provides that “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.  Article III, Section 6 of the West Virginia Constitution provides for the same protections, almost-verbatim.

Search warrants may be issued by municipal judges, magistrates, and circuit court judges, if they are within the jurisdiction of the location of the items sought to be seized.  Probable cause must be set forth in a written affidavit detailing the probable cause and listing and describing the place to be searched and the items to be seized.  The warrant must be executed by the officer who obtained the warrant within ten days of being issued. See W. Va. Code § 62-1A-4; State v. Clements, 175 W. Va. 463 (1985).

All warrantless searches are per se unconstitutional, but there are several exceptions, one of which is consent. See State v. Buzzard, 194 W. Va. 544 (1995).  Another exception is the “emergency doctrine,” which provides that a warrantless entry into a suspect’s home can be proper where there is an immediate need for assistance in the protection of human life, the search or entry by the officers is motivated by an emergency, rather than by an intent to secure evidence, and there is a reasonable connection between the emergency and the area in question. State v. Cecil, 173 W. Va. 27 (1983).  

Another exception is a search incident to a lawful arrest, which covers the individual’s person and “immediate geographic area under his physical control,” namely for physical safety purposes. See State v. Sugo, 193 W. Va. 388 (1995).  Another exception is the “open fields doctrine,” which excepts areas outside the “curtilage” from the warrant requirement (i.e., land, vacant lots, water). See State v. Lilly, 194 W. Va. 595 (1995).  Yet another exception is the “plain view doctrine,” which holds that if an officer observes what he has probable cause to believe is incriminating evidence or contraband, and if he is legally in a physical location that he is entitled to be, then he may seize any of those items without a warrant.  

Warrantless searches may also be allowed in situations of “hot pursuit,” where the officer is pursuing a suspect with “speed” and with “continuous knowledge of the alleged perpetrator’s whereabouts.”  Items that can be searched or seized includes anything observed while looking for the suspect. See Goins v. James, 189 W. Va. 634 (1993).  However, a warrantless entry into a home still requires that exigent circumstances exist. See State v. Cecil; U.S. v. Shelton, 737 F.2d 1292 (4th Cir. 1984).

Vehicles

Moving vehicles can be stopped if reasonable suspicion exists, and they can be searched if probable cause exists.  Reasonable suspicion requires that an officer articulate facts which provide some minimal, objective justification for the stop.  It has to be something more than an “inchoate and unparticularized suspicion or hunch.”  Probable cause exists when the facts and circumstances as established by probative evidence are sufficient to warrant a prudent person in the belief that an offense has been committed and that the subject committed it.  

Pursuant to the lawful arrest of the driver of a moving vehicle, the passenger compartment of the vehicle may be searched, as well as any open or closed containers in the passenger compartment that are not locked. See New York v. Belton, 453 U.S. 454 (1981).  After an arrest, officers may perform a vehicle inventory of the contents of an arrestee’s vehicle if the vehicle is being legally impounded and the owner of the vehicle is not present or otherwise available to provide for the safekeeping of the vehicle contents.  However there are requirements that must be met. See State v. Goff, 166 W. Va. 47 (1980); State v. Perry, 174 W. Va. 212 (1984); South Dakota v. Opperman, 428 U.S. 364 (1976).

Traffic stops are not considered arrests, unless the driver is detained above and beyond what is necessary to issue a traffic citation or warning, or unless physical force or intimidation is used to detain a driver.  Both drivers and passengers may be ordered out of a vehicle at any time for any reason. See Pennsylvania v. Mims, 434 U.S. 106 (1977).  Officers are not required to inform drivers that they are free to go following the issuing of a citation or warning. Ohio v. Robinette, 519 U.S. 33 (1996).

Pedestrian Stops

Regarding pedestrian stops, usually involving an officer requesting identifying information from an individual, refusal to produce identification may not alone form the basis for an arrest.  Wilmoth v. Gustke, 179 W. Va. 771 (1988).  However, if there is express statutory direction requiring one to do so, or if the officer communicates a specific reason why the information is being sought with respect to official duties of the officer, then the refusal may form the basis for a charge of obstruction under W. Va. Code § 61-5-17(a). State v. Srnsky, 213 W. Va. 412 (2003).

Computers

To search or seize a computer located in a suspect’s home, an officer must obtain a search warrant.  In order to obtain a warrant, there must be a written complaint under oath, as with arrest warrants, which must adequately describe the computer and/or other items to be seized – such as all of the various accessories and drives that may be connected with the computer (i.e., backup or portable hard drives, digital cameras, printers, DVD’s, etc.) and which connects the same to some crime alleged to have been committed.  Proper procedures must be used in disconnecting and dismantling the computer or drives, and should be performed at the direction and instruction of whatever forensic computer examiner will be analyzing the computer, or else data may be lost or destroyed. U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000)

To search or seize computers outside a suspect’s home, i.e., place of employment, the suspect must not have a legitimate expectation of privacy in the computer – it must not be one that society is prepared to accept as objectively reasonable.  Thus, each situation is unique and turns on the specific facts involved, such as whether the office is private or locked, whether the computer is password protected, whether other employees have access to the computer, whether the employer has an applicable computer policy that allows a search, whether the employer monitors computer use.  Law enforcement officers routinely may, and do, obtain subpoena’s for the suspect’s information held by the ISP provider, such as their account information, their “ISP”, address, and website history, for which there is no legitimate expectation of privacy. See U.S. v. Hambrick, 225 F.3d 656 (4th Cir. 2000); Smith v. Maryland, 442 U.S. 735 (1979).

Note:   Please understand that an infinite amount of time was not spent on this material ensuring it’s accuracy.  Thus, there may be mistakes in it.  If you are faced with a specific legal situation, you need to speak with an attorney individually about your particular circumstances.  If you are an attorney, you need to rely on your own research and work product rather than what I have written here.  This is meant merely to be helpful.

 - John H. Bryan, West Virginia Attorney.

Monroe County Jury Trial Today

I haven’t posted for a few days, and will not be posting today, because I have a felony criminal jury trial in Monroe County. If it doesn’t go well, I’ll just skip the part where I post the results….

UPDATE: Big win last night. The jury deliberated far into the evening and eventually hung on count 1, which was felony wanton endangerment with a firearm. They came back not guilty of count 2, which was felony wanton endangerment with a firearm, but guilty of the lesser included of brandishing, which is a misdemeanor. And they came back guilty of count 3, which was a misdemeanor battery charge, which was expected and really not opposed.

It was a difficult case, and was argued well by the prosecuting attorney, and bitterly fought by myself. And in the end my client didn’t walk out of the courtroom a convicted felon – and with a mandatory penitentiary sentence and three year bar for parole – and that was my goal. Though extremely unlikely, the prosecutor could try my client again on count 1, but like they say, we’ll cross that bridge if we get there. Every trial is a mini-war, and you have to fight it one battle at a time. I’m pretty confident though that this war is over.

This result further strengthens my respect for the right to a jury trial. Everyone else can write you off, but in the end it’s up to the jury. And we can all be comfortable knowing that we have that right.

Prosecutors need to start offering me better pleas. This is the third felony criminal jury trial in the past year where my client and I have been backed into a corner, forced to go to trial, and achieved either a unanimous and complete acquittal, or at least one unanimous acquittal and beaten the plea offer.

And I have another criminal felony jury trial on deck for next month, and so, like it or not, I will remain on the warpath… 

- John H. Bryan, West Virginia Attorney

You never really know what did it…

After about an hour and a half of deliberations on Friday, my Greenbrier County jury came back against my client in a civil jury trial. I really thought we had a good chance of winning. But such is the character of civil juries. In civil cases, you never really know what the jury is going to do. They are unpredictable. They could go either way based on something that both sides never even thought was important. On the other hand, in criminal cases, the jury 90% of the time is going to convict. That is what you can expect. Your struggle is one of the underdog.

There was something unique about this jury though – it had a criminal defense attorney on it. Usually it is a bad idea to leave a lawyer on a jury, and it may have been this time. I made a gut decision to leave him on based on a subtle nuance of the law that I thought he would understand and explain to the other jurors. But I suppose that is a two-way street. And then again, it could have been some fatal flaw in my client’s factual case that swung the jury. The fact is, you never really know.

There is no second place, but it is always good to know that in this situation your client is satisfied that you did the best that possibly could have been done given the circumstances. Sometimes you are just backed into a corner, and in this case, there was no possibility of settlement, so it was just up to the jury. And good or bad, you usually just have to live with the jury’s decision.

– John H. Bryan, West Virginia Attorney.

Jury Trial Ongoing

I am still in the middle of my Greenbrier County civil jury trial, so my time continues to be limited. Closing arguments are slated for friday morning, and then the jury will get the case. For that reason, I can’t comment on it other than to say it is unbelievable how much jury trials take out of you. When I played football, I pushed my body to the limits physically. Then, after the game, and the next day, I was tired and worn out. For some reason, I feel the same way after a full-day of trial. The mental concentration, stress and passion that I put into it leaves me drained afterwards, as if I had been doing some strenuous physical activity all-day. For this reason, a week-long murder trial is like a triathlon, and part of your strategy has to be dealing with your physical body and your mind: drinking enough water, getting enough sleep, and preparing yourself mentally each day.

– John H. Bryan, West Virginia Attorney.

Civil Jury Trial in Greenbrier County

Unfortunately, I will not be able to post much for a little while because I have a civil jury trial in Greenbrier County rapidly approaching. As with any jury trial, it takes an overwhelming amount of preparation to even get there, much less to win. So if you don’t hear from me for a while, it’s definitely not because I’m out partying.

– John H. Bryan, West Virginia Attorney.

This Blog Makes Front-Page News…

Note: this post was initially much more extensive.  Pursuant to the advice of my beautiful wife, against whom I have never won an argument (and suspect I never will), and who’s advice has the usual effect of making my hot-heated initial reactions seem childish and ineffective, I have revised this post.

It seems that my humble commentary regarding the Register-Herald op-ed piece detailed in my last post touched quite a few nerves at the Monroe Watchman newspaper. For those of you who may not know, the Monroe Watchman is the main newspaper for Monroe County, West Virginia, and it has been continually published since 1872. It’s a great paper. I read it every week, and I am also a paying advertiser. They are also located right across the street from my office building.

Why should they care about my commentary in this post? Because the Watchman is owned by the family of the former prosecutor who I allegedly criticized, and understandably, they are protective of their family members. And also understandably, the former prosecutor is deeply hurt as a result of the lost election.  And I completely understand the hurt, as I suffered through my father’s election defeat as a college student.  It’s not easy to see negative television commercials about your father running during prime-time every couple of minutes for a month straight.  Your natural reaction is to lash-out at your perceived threat, and I guess that that is what I was doing as well in my initial response in this post.  And so I also understand why the former prosecutor feels the need to protect himself and his family.

This situation is not about me, it’s not about the former prosecutor, nor the current prosecutor, nor the magistrate – nor the Watchman.  This is about Mr. Watson, who made the intentional choice to consume alcohol and drive a dozen children off of a 120 foot cliff in a Monroe County school bus.  This is about Mr. Watson, who tried to save his own skin by lying and claiming that he consumed Nyquil the night before.  This is about Mr. Watson, who misled much of the community into believing that he was innocent, only to let them down with the sad truth – that he had an alcohol problem.  But, he still didn’t want to lose his job, and he didn’t want to lose his retirement.  That was what Mr. Watson was worried about.  Was he worried about the children on board his reckless DUI school bus?  No, he was worried about himself.  This is about the fact that Mr. Watson received a plea deal where only two days was recommended, and where he only received twelve (to serve on the weekends at his leisure).  

When I was working as a young prosecutor in Raleigh North Carolina, I tried a man for 2nd offense DUI.  He was convicted and sent to jail for one year.  There was no accident, no children in the car, no adults in the car – nobody injured whatsoever.  He was just some guy who got pulled over and failed some field sobriety tests.  That was a serious charge.  He was the first person I sent to jail as a prosecutor.  I’ll never forget the image of a deputy walking up behind the man and putting him into handcuffs.  Imagine if this man, when he was pulled over, had a child in the car?  Imagine if he had a dozen children in the car.  Imagine if he had a dozen children in the car and drove off a 120 foot cliff.  Imagine that he did this with your child in the car, entrusted to his care, and that afterwards he lied and told you that it must have been the Nyquil he took the night before?  My point is, this is about protecting the children.  We should have made an example of this man.  He was a school bus driver for heavens sake!  The citizens of Monroe County trusted him to drive their children to school and back every day!

I have been on the other side of the coin as well.  As a defense attorney in Greenbrier County several years ago, I had a client who was convicted of 2nd offense DUI.  We begged and pleaded to the judge for a light sentence, since he wanted to join the military.  The guy was sentenced to one year in jail – and he actually went to jail for about 8 months before he got out of jail.  He wore the orange jumpsuit and ate the awful food for breakfast, lunch and dinner – everyday.  He did his time.  He didn’t whine or complain.  He served his debt to society. 

My argument is simply this: did this man not deserve a real punishment?  Would it really have been a great miscarriage of justice if this man had really been forced to serve a real sentence in jail?  I don’t think so.  It happens all the time in 2nd or 3rd offense DUI cases.  Is it not more egregious for a man to get drunk and then drive a school bus loaded with children?  And then to actually crash off a cliff?

Since the Editor criticized me for making “no effort to discuss the issue with Mohler before writing [my] scathing assessment…” then I will reiterate the same offer that always exists on this blog – both to subjects of my posts and to casual observers: if you disagree with something I have said, then please, by all means, leave a comment on the blog. As always, anonymity will be maintained where requested.

- John H. Bryan, West Virginia Attorney

West Virginia Criminal Law Blog Featured By “Simple Justice”

One of the top, if not the top, criminal law blogs in the country, authored by Scott Greenfield in New York, Simple Justice, recently featured this blog in a post titled, “New Blood in the Blogosphere,” which can be found here. Thanks, Scott. I would encourage anyone interested in criminal law to check it out, as I do regularly.

Probable Cause Found in Bluefield Shooting Case – Preliminary Hearings Basically Meaningless in West Virginia

From the Bluefield Daily Telegraph today:

Mario Goodson, 18, appeared Monday for a preliminary hearing before Magistrate Rick Fowler. Fowler found probable cause in Goodson’s case and bound him over to the Mercer County Grand Jury.

Both Goodson and Kenneth Dwayne Eaves, 19, of Bluefield are facing charges of conspiracy and first-degree murder in the Dec. 14, 2007 death of 28-year-old William Jerome Flack of Bluefield. Detective L.B. Murphy of the Mercer County Sheriff’s Department testified Feb. 8 that witnesses allegedly heard Eaves order a second person, Goodson, to shoot Flack.

Wow, that is a big surprise. Many West Virginians do not realize that if they are arrested on a felony, they are entitled to a preliminary hearing in front of a supposedly neutral magistrate to establish whether the police have probable cause to hold you in jail (or on bond) for the charges. They also don’t realize that this process is for the most part a farce, a formality. Preliminary hearings in West Virginia are a joke. The magistrates for the most part are not lawyers and have no legal training on what is and what is not probable cause. They, for the most part, have no idea what is and what is not admissible under the West Virginia Rules of Evidence (of course, there are exceptions).

The West Virginia Rules of Criminal Procedure allow for “relaxed hearsay” in preliminary hearings. This means that the investigating officer can come in and testify to some hearsay if there is a substantial basis for believing that (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. Therein lies the problem. Many magistrates will just allow the investigating officer to come in and testify to anything and everything they were told throughout their investigation. Then, the magistrate will say, “well, probable cause is a very low burden, and they have met the burden… I find there is probable cause.”

For instance, I had a client who was charged with a absolutely ludicrous felony charge in Greenbrier County. His preliminary hearing was held by a magistrate in Greenbrier County. The State subpoenaed three witnesses: the investigating officer, and two very disreputable convicted felons whom had been caught red-handed and pointed the finger at my client to try and get a plea deal. They appeared and were waiting in the waiting room as the hearing began. The State called the officer first, and he proceeded to testify to almost entirely hearsay testimony – basically everything the other two idiots in the waiting room would have testified to. I objected to hearsay, reciting the above relaxed hearsay rule, but the magistrate basically said that all hearsay is allowed in preliminary hearings. Thus, the magistrate allowed the hearsay testimony despite the fact that the two idiots were in the next room, so the primary source of the evidence could have testified. Furthermore, they were extremely incredible. One of them was notorious in the county for being a career criminal, having spider web tattoos all the way up his neck. The lying officer however, grinned and testified that he thought the man was credible. I later told this to the Prosecuting Attorney, and he laughed and joked that everyone knew that this was the most incredible man in the county, perhaps the state.

As it turns out, when it came my turn to call witnesses, I obviously tried to call the two idiots in the waiting room, so that my client would at least have the opportunity to confront his witnesses. Believe it or not, the assistant prosecutor, on his first week of the job, objected on the grounds that they may be charging one of them with a crime and one may testify against the other, and that therefore there was a “use immunity issue.” I responded that it was irrelevant, and was the prosecutor’s problem and had no bearing on the hearing. The magistrate however, got really, really worried that she was going to make someone mad in the prosecutor’s office and decided not to allow me to call any of the witnesses that had been subpoenaed to the hearing and were waiting in the next room. Then, that was it: she found probable cause and we were not allowed to call any witnesses. This was an absolute disgrace to our criminal justice system. Imagine if it were your son or daughter that was treated like this.

Fortunately this client was able to make bail, as his case was never even brought to the grand jury. If it were some poor sap who didn’t have any money, he would still be sitting in jail thanks to this meaningless system of magistrates conducting preliminary hearings.

By the way, these same non-lawyer judges are the ones who make decisions on whether or not the police have probable cause to be issued warrants to search your home – or to arrest you. Yes, it’s very scary and very unjust.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Attorney John H. Bryan’s Client Found Not Guilty After Jury Trial in Summers County

Part of the reason that I have not posted lately is because I was preparing for a jury trial in Summers County, West Virginia, in a third-degree sexual assault case – basically a “he said – she said” situation. I am pleased to note that the trial went extremely well. It lasted for about a day and a half. After the jury deliberated for about an hour and twenty minutes on Friday, they came back with a unanimous verdict of not guilty.

It is interesting to note that the investigating officer in the case testified on the witness stand during cross examination that trace evidence disappears after 3 weeks. I asked him if he ever watches “Cold Case Files”…. He replied that he did not. I have a feeling however that the jurors had seen it.

- John H. Bryan, West Virginia Attorney.

Patricia Brown Sentenced to 40 Years

Yesterday, Patricia Brown was sentenced to 40 years, which is the maximum sentence for 2nd degree murder. Following a jury trial, she was acquitted of first degree murder. At the hearing, two members of the victim’s family spoke. Then Patricia briefly spoke on her own behalf, still proclaiming her innocence.

Usually, when the family of the victim speaks at the sentencing, and when the defendant still proclaims her innocence, a greater sentence will be imposed than in your run-of-the-mill sentencing hearing. In this case, myself and Tom White, as her defense attorneys, were fully prepared for her to receive the maximum sentence.

However, 40 years is much better than life without mercy. In her case, she will come up for parole in 10 years – actually 9 years since she has already spent one year in jail. – John H. Bryan, West Virginia criminal defense attorney.

Patricia Brown Murder Trial

On December 6, 2006, a stabbing death took place at 417 Temple Street in Hinton, West Virginia. Three people were involved in an altercation in a home, one of them was stabbed. The two survivors both blamed each other. This set the foundation for a trial that would last nearly two weeks in December 2007.

Lewisburg attorney Tom White, as well as myself, were appointed by the court to represent Mrs. Brown. For over a year, we prepared the case for trial. We knew that it would be difficult for her to get a fair trial in Summers County, West Virginia, so we filed a motion for change of venue. The motion consisted of twenty-six pages of negative and biased media accounts that had already been injected into the minds of potential Summers County jurors. However, the motion was denied and we went to trial on December 11, 2007.

The end result was that Patricia Brown was acquitted of first degree murder, but was found guilty of second degree murder. Of interest to this blog however, is the conduct of the West Virginia State Police Forensics Lab during the investigation of Mrs. Brown and during the trial itself. What most West Virginians do not know is that the State of West Virginia does not have a separate and independent forensics lab to perform the DNA and other testing in criminal cases, as does almost all other states. This has presented serious problems in the past, and it continues to pose a problem. I will detail some of these problems in my next post.